Licence Appeal Tribunal File Number: 20-012718/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Eman Shoshan
Applicant
and
Co-operators General Insurance Company
Respondent
MOTION DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Sam Elbassiouni, Counsel
For the Respondent:
Laura Emmett, Counsel
Court Reporter:
Rowan Miller
Motion heard in writing and via videoconference on:
November 14, 2022
BACKGROUND
1The applicant, Eman Shoshan, was in an accident on October 20, 2017. She sought benefits from the respondent, Co-operators General Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010.1 When the respondent denied her claims for certain benefits, she applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute.
2This matter was scheduled for a five-day videoconference hearing commencing on November 14, 2022.
MOTION
3At the outset of the hearing, the parties advised the Tribunal that they believed the matter to be subject to an automatic stay of proceedings under s. 25 of the Statutory Powers Procedure Act (“SPPA”).2 They assumed this was the case because on November 8, 2022, the applicant filed a notice of appeal with the Divisional Court seeking to set aside the Tribunal’s October 6, 2022 motion order, in which the Tribunal denied the applicant’s request for an adjournment.
4The Tribunal advised that there was no stay of proceedings because s. 25 of the SPPA does not apply when a party seeks to appeal an interlocutory decision by the Tribunal. The Tribunal advised the parties that the matter was proceeding as scheduled.
5The applicant then brought a motion requesting two forms of relief: an order confirming the automatic stay of proceedings or, in the alternative, an order adjourning the hearing.
6I dismissed both requests orally with written reasons to follow.
7After delivering my motion decision, the applicant’s counsel requested a recess to discuss case management with respondent’s counsel and to obtain instructions from his client. When the hearing reconvened, the applicant moved to convert the videoconference hearing to a written hearing. I granted that motion orally with written reasons and directions to follow.
8These are my reasons and directions.
RESULT
9The applicant’s motion to confirm a stay of proceedings is denied. The motion to adjourn the videoconference hearing is denied. The matter shall proceed as a written hearing.
ANALYSIS AND REASONS
Request to confirm a stay of proceedings
10Section 25(1) of the SPPA provides as follows:
An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,
(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or
(b) the tribunal or the court or other appellate body orders otherwise.
11The applicant submits that the Divisional Court will hear appeals from interlocutory decisions by the Tribunal in special circumstances, and that where an interlocutory appeal is entertained by the court, an automatic stay of proceedings takes effect. On this point, the applicant relies on Awada v. Allstate, 2021 ONSC 8108 (“Awada”).
12The applicant submits that in Pafco Insurance Company v. Sahadeo, 2022 ONSC 328 (“Pafco”), the Divisional Court confirmed the principle that the court has jurisdiction to hear appeals from interlocutory decisions of the Tribunal in exceptional circumstances, but that Pafco is otherwise irrelevant to the issue of an automatic stay because it involved an application for judicial review, not an appeal.
13The respondent submits that the case of Jevco Insurance Company v. Yu Hang, 2022 ONSC 4961 (“Jevco”) is relevant to the analysis because of Justice London-Weintstein’s observation at para. 45 that judicial stays of proceedings may be appropriate in circumstances where, for example, “counsel of choice is not reasonably available, or where there have been unforeseen delays.”3 The respondent submits the applicant faced unforeseen delays in this case, and therefore the application should be stayed.
14The parties’ interpretation of s. 25 of the SPPA fails to account for recent developments in the jurisprudence in this area.
15It is settled law that Tribunal proceedings are not stayed by an appeal from an interlocutory decision. In Awada, Justice Corbett dismissed an appeal from a production order of the Tribunal and emphasized that the court will not interfere with the administrative process until it is completed. Contrary the applicant’s submission that Pafco is irrelevant because it was not an appeal proceeding, that case involved both an appeal and an application for judicial review. The impugned decision was an evidentiary ruling by the Tribunal. In dismissing both the appeal and the judicial review application for prematurity, Justice Corbett referenced the court’s prior directions to the parties that the “impugned order and the proceedings below are not stayed unless and until the court orders otherwise” (emphasis in original).4 Justice Corbett reiterated that “[permitting interlocutory appeals […] could render the underlying proceedings interminable.”5
16The court has since confirmed that the “exceptional circumstances” doctrine discussed in Awada, and upon which the applicant relies, applies only on judicial review. In Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874 (“Penney”), the court explicitly stated, “[g]iven the language of s. 11(1) and (6) of the LAT Act, read in the context of the entire statute and the objective of preventing fragmentation of and delay in administrative proceedings, I conclude that this Court has no jurisdiction to hear an appeal from an interlocutory decision of the LAT” (emphasis added).6
17The court will continue to consider applications for judicial review involving interlocutory decisions in exceptional circumstances. This is the principle discussed in Jevco (which was a judicial review proceeding, not an appeal). The court will not, however, hear statutory appeals made under the Licence Appeal Tribunal Act, 19997 from interlocutory decisions.
18Although a judicial review of an interlocutory order may be entertained in exceptional circumstances, s. 25(2) of the SPPA clarifies that an application for judicial review is not an “appeal” for the purpose of the automatic stay in s. 25(1).
19Where there is no jurisdiction for an appeal to be heard, there can be no automatic stay of the underlying proceedings.8 Section 25 of the SPPA has no application in the present case. As s. 25 of the SPPA does not apply, there is no automatic stay to be confirmed, and the applicant’s motion must be denied.
Request to adjourn the hearing
20The applicant requested to adjourn the hearing on September 19, 2022. That request was denied by Adjudicator Fogarty by way of a motion decision dated October 6, 2022. The basis for that request was that the applicant’s counsel, Mr. Elbassiouni, was double-booked with another Tribunal hearing scheduled to proceed for four days during the week of November 14, 2022.9 However, by the date of the hearing, this conflict had resolved.
21Because the basis for the earlier adjournment request had become moot, the applicant based the renewed adjournment request on grounds not argued in the original request for an adjournment. Applicant’s counsel made extensive oral submissions before me detailing the circumstances that led him to being, in his own words, unprepared to proceed on the date scheduled by the Tribunal. The applicant’s counsel did not specify the length of the adjournment being requested but generally referred me to the materials filed in support of his recently denied adjournment request, which proposed an adjournment of the videoconference hearing until May or June 2023.
22Mr. Elbassiouni took carriage of this file in April 2022. He initially submitted that he became aware of the hearing date in this matter sometime in August 2022, but later confirmed that he received notice in June 2022, when he telephoned the Tribunal’s contact centre to inquire about upcoming event dates.
23The applicant’s counsel submits that his “recent” retainer (some seven months ago) leaves him unprepared to proceed with the videoconference hearing. He submits he only obtained a copy of his client’s former counsel’s file on October 19, 2022. He submits that it was impossible for him to adequately prepare for the hearing before receiving this file because it contained, among other things, his client’s former counsel’s notes on strategies. Once the file was obtained, he determined he could not follow those strategies, and every lawyer has their own approach.
24Mr. Elbassiouni submits that he has no knowledge of the witnesses his client’s former counsel intended to call, and that although he has attempted to locate some witnesses, he has been unable to contact any of them. He submits that he has tried to discuss the witnesses that may need to be called with his client, but she does not speak English and suffers from cognitive limitations. He submits that he has tried to obtain his client’s medical records but has been unsuccessful, partly because the applicant resides in London, and he does not routinely deal with the clinics she attended for treatment. He submits that he obtained the respondent’s accident benefits file, but that it contains limited records.
25The respondent consented to the adjournment, submitting that the request is reasonable because Mr. Elbassiouni was recently retained and had encountered unforeseen delays. Respondent’s counsel, Ms. Emmett, submitted that granting an adjournment was an “access to justice issue.” She added that it is her professional responsibility to agree to reasonable requests for adjournments that do not prejudice the rights of her client. She did not provide any detail as to how, in circumstances where an applicant is unprepared to call any evidence at a hearing, almost certainly resulting in a dismissal of the application, consenting to an adjournment would not prejudice her client.
26In submissions, both the applicant and the respondent alluded to a dispute over whether the applicant is catastrophically impaired. Catastrophic impairment “will be in dispute,” the applicant submitted. When I asked counsel to clarify what he meant by this, he stated that the applicant intends to file a new application with the Tribunal to have this issue adjudicated. When asked for her submissions on whether a written hearing would be an appropriate alternative to proceeding with the videoconference hearing, the respondent’s counsel submitted that it would be undesirable to “bifurcate the hearing.” When I asked for clarification on this point. the respondent submitted that catastrophic impairment should have been added earlier on but was not. Both parties expressed concern that deciding the catastrophic impairment issue in a separate application raises the risk of inconsistent decisions, but rejected the notion of entering into a tolling agreement on the issues currently in dispute and filing a fresh application on all issues to avoid inconsistent outcomes.
27Notably, the videoconference hearing in this application was already adjourned from February 2022 for the express purpose of allowing the parties to obtain catastrophic assessments. When the adjournment was ordered, the respondent submits, the matter was set down for a five-day hearing to allow the catastrophic impairment issue to be determined along with the other issues currently in dispute. Counsel advised that the catastrophic reports were obtained several months ago. However, despite time being set aside for the issue to be adjudicated, the applicant did not formally seek to add catastrophic impairment to the dispute. Now, the applicant seeks to adjourn because, in the applicant’s submission, the file is not hearing-ready. It is not readily apparent why the parties did not request on consent to add catastrophic impairment to the issues in dispute sooner, given that they have had the reports for several months, or why they were not ready to proceed on the other disputed issues, since there has been no motion to add catastrophic impairment.
28The applicant’s counsel submits that if the Tribunal finds he has not fulfilled his duties to his client, that she should not be made to suffer as a result. He submits that it would be highly prejudicial, a denial of procedural fairness, and would deprive the applicant of her right to counsel of her choice for him to proceed with the hearing without adequate preparation. In his words, proceeding under these circumstances would be “a death sentence” to his client’s case.
29When considering an adjournment request, the Tribunal conducts a contextual, fact-specific analysis considering, amongst other factors: the timeliness of the request; the reasons for being unable to proceed on the scheduled date; compliance with prior Tribunal orders; previous adjournments that have been granted; the desirability of having the matter decided; and the length of the requested adjournment.10
30The applicant has not established grounds for an adjournment. The applicant’s counsel has had carriage of this file for seven months. This is not a recent retainer. Mr. Elbassiouni has had knowledge of the hearing date for five months. I accept his submission that his office was actively pursuing the applicant’s former counsel’s file, and that he did not obtain it until October 19, 2022. Although the proceedings were adjourned before Mr. Elbassiouni was retained, the events outlined in his submissions simply do not amount to the unforeseen circumstances he submits warrant an additional adjournment. I do not accept that the circumstances provide a reasonable basis for arriving at a hearing with no documents, no witnesses, and no plan as to how he would present his client’s case.
31I accept the parties’ submissions that they assumed, on a plain reading of s. 25 of the SPPA, that that the hearing would automatically be stayed by the notice of appeal filed by the applicant. However, at best, this only explains the lack of steps taken to prepare for the hearing in the few days before it was scheduled to commence. It does not explain the failure of both counsel to file hearing briefs and witness lists by October 24, 2022 as ordered by the Tribunal in a February 3, 2022 order. Nor does it explain why, after having carriage of the applicant’s file for seven months, Mr. Elbassiouni did not obtain the records he submits he needed to proceed to a hearing, determine which witnesses he intended to call or make arrangements for their attendance, or comply with the Tribunal’s orders to exchange productions and provide particulars of the award claim by August 15, 2022.
32Counsel did confer in August and September 2022 on a consent adjournment of the hearing, arriving at a range of dates that were mutually agreeable to them for the conduct of the hearing in May and June 2023. But they failed to take the necessary steps to prepare this file for the scheduled hearing in case the adjournment would be denied.
33Parties are expected to come to the Tribunal prepared to proceed with the dispute resolution process. Unless and until an adjournment is granted, it is the responsibility of parties and their representatives to continue to take necessary steps to prepare for a hearing.
34There is no denial of procedural fairness in this case. The circumstances were foreseeable and routine. The Tribunal held two case conferences, gave notice of a hearing date, and granted a lengthy adjournment. Despite having several months’ notice of the November 2022 hearing date, the applicant’s counsel was not prepared to call any evidence at the videoconference hearing. Any prejudice or disadvantage flowing to the applicant from these events is not because the Tribunal failed to provide a fair process for resolving the dispute.
Hearing format change
35After I delivered my oral ruling on the applicant’s motion, I explained to the parties several procedural options for moving forward with the adjudication process, including having witnesses testify later in the week, having some of the evidence go in by way of document briefs, having expert evidence tendered by way of reports rather than live testimony, and converting the matter to a written hearing. After taking time to consider, the applicant requested that the matter be converted to a written hearing on the issues currently in dispute, without adding catastrophic impairment. The respondent consented to this request.
36During discussions with the parties about a timeline for written submissions, it came to light that the applicant was seeking additional time to obtain third party medical records. The respondent confirmed that apart from clinical notes and records from the applicant’s family physician, the applicant had not satisfied most of the production requests the respondent made at a case conference in March 2021. Those productions were ordered again by the Tribunal in February 2022. The respondent noted that the issues in dispute are discrete benefit claims and that the historic medical records that the applicant’s former counsel had provided should be sufficient, but did not oppose the applicant’s request for more time to gather documents in support of her claims.
37I find that a written hearing is a fair and proportionate format for adjudicating the issues in dispute, which include a non-earner benefit, medical benefits, interest an and award. In the interests of moving this matter forward to final, merits-based adjudication, I granted the parties’ request to order a timeline for written submissions in March 2023. This timeline balances the need to have the matter decided on the merits and the need to mitigate further delay to the parties, who have been awaiting resolution of this dispute for 750 days.
CONCLUSION AND ORDER
38The applicant’s motion to confirm a stay of proceedings is denied. The applicant’s motion to adjourn the videoconference hearing is denied. The applicant’s motion to convert the videoconference hearing to a written hearing is granted.
39The timelines for productions and submissions in this order are marked peremptory.
40The Tribunal will issue a Notice of Written Hearing for April 3, 2023.
41Exchange of documents (productions):
a. The parties shall exchange all productions requested in the parties’ case conference summaries up to the date of this order no later than January 23, 2023.
b. No later than February 13, 2023, the parties shall exchange all items responsive to those already produced that they intend to rely upon in the written hearing.
42Written submissions and evidence: The parties will serve their written submissions and evidence on each other and file with the Tribunal according to the following timetable:
Due Date
Page Limit
Applicant’s submissions and evidence:
March 6, 2023
15 pages
Respondent’s submissions and evidence:
March 20, 2023
15 pages
Applicant’s reply submissions or written notice that no reply submissions will be filed:
March 27, 2023
7 pages
OTHER PROCEDURAL MATTERS
43Submissions and document/authority briefs shall be double-spaced, 12-point, Arial or Times New Roman font and be indexed, bookmarked/tabbed and consecutively page numbered. Submissions shall make specific reference to the evidence and law by tab and page number. The hearing adjudicator may choose not to review evidence not so referenced.
44If the parties resolve the issue(s) in dispute, the applicant shall immediately advise the Tribunal in writing.
Released: November 17, 2022
___________________________
Theresa McGee
Vice-Chair
Footnotes
- O. Reg. 34/10.
- R.S.O. 1990, c. S.22.
- See para. 45.
- See para. 6.
- See para. 13.
- See para. 26.
- S.O. 1999, c. 12, Sched. G.
- See also Kahissay v. Intact Insurance, 2022 ONSC 6357 (“Kahissay”), in which the Divisional Court emphasized it has no jurisdiction to hear appeals from interlocutory decisions of the Tribunal. Although Kahissay was released on November 14, 2022 and was therefore not addressed in the parties’ motion submissions, it confirms at para. 7 that the law on this point is settled and Penney is the controlling authority.
- Applicant’s Request for an Adjournment, Schedule A, para. 12 (dated September 19, 2022).
- See The Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484.